The principal merits holding in the court of appeals' opinion today in al-Marri is that Congress has not authorized the indefinite military detention of a person who is (i) protected by the Due Process Clause (including, at a minimum, U.S. citizens and residents); and who is (ii) not under the direction of an enemy nation -- and that if Congress had authorized such a detention, it would raise profound Due Process questions under Milligan.

The court assumes, without deciding, that if a detainee is under Al Qaeda's direction but is not protected by the Due Process Clause (as the court assumes for sake of argument Hamdan, for instance, is not), or if the person is taking direction from, or fighting on behalf of, the Taliban, then Congress has authorized that person's detention, principally because such detentions would not raise the same Due Process problems that are raised here (and in the latter case, because the laws of war would authorize the detention, and Congress is presumed to have given the President such law-of-war authorities).

These distinctions are quite complicated and subtle, and will be subject to significant debate as the government proceeds with its appeal to the en banc court of appeals. I hope to have an opportunity to discuss them further, but I'm going out of town in a couple of days and have too much on my plate before then.

For now, I want to focus on another, much less prominent but equally important part of the opinion -- the second paragraph of footnote 16, on page 59.

As the Court held in Hamdi, and as both the majority and dissent stress in today's opinion, the traditional purpose of military detention -- and the presumed reason Congress has authorized it as to some persons -- is to incapacitate, or immobilize, the enemy -- "to prevent the captured individual from serving the enemy." Territo (quoted in the dissent at page 82).

Let's assume for the sake of argument that the majority in today's opinion was wrong on its main point -- i.e., let's assume arguendo that al-Marri is, like Hamdi, within the class of persons for whom Congress has authorized military detention.

Even so, his military detention here would be of very dubious legality.

Why is that?

Because he was already immobilized. al-Marri had been arrested on criminal charges in February 2002. He was held in custody by the U.S. for 16 full months before the President ordered him transferred to military detention in June 2003. And that transfer occurred, not coincidently, as soon as the trial court set a hearing on a motion al-Marri had made to suppress some evidence in his trial.

Thus, the predicate for any authorization to militarily detain al-Marri simply was not present -- he was already incapacitated and could no longer serve the enemy.

So why was he transferred? As the court suggests in note 16, he was transferred in order to subject him to coercive, possibly abusive, interrogation.

The timing here is suspicious. Recall that when al-Marri was originally detained on criminal charges, the Uniform Code of Military Justice prohibited the military from using any cruelty or maltreatment, not to mention assault and threats, against detainees. It was in March of 2003 that the Department of Justice told the Pentagon that the President could, as Commander-in-Chief, disregard those statutory constraints (as well as those imposed by the Torture Act and the Convention Against Torture). Therefore it is not surprising that for the first sixteen months of al-Marri's military confinement, starting in June 2003 (i.e., just after the DOJ Commander-in-Chief advice), the Government did not permit him any communication with the outside world, including his attorneys, his wife, or his children. He alleges that he was denied basic necessities, interrogated through measures creating extreme sensory deprivation, and threatened with violence.

And if that -- abusive interrogation -- was the reason for the military detention, then Congress did not authorize it, even if al-Marri could have been militarily detained for incapacitation purposes in the first instance. As the court explains:

The Government’s treatment of others [in the criminal justice system] renders its decision to halt al-Marri’s criminal prosecution -- on the eve of a pre-trial hearing on a suppression motion -- puzzling at best. Al-Marri contends that the Government has subjected him to indefinite military detention, rather than see his criminal prosecution to the end, in order to interrogate him without the strictures of criminal process. We trust that this is not so, for such a stratagem would contravene Hamdi’s injunction that "indefinite detention for the purpose of interrogation is not authorized." 542 U.S. at 521. We note, however, that not only has the Government offered no other explanation for abandoning al-Marri’s prosecution, it has even propounded an affidavit in support of al-Marri’s continued military detention stating that he "possesses information of high intelligence value." See Rapp Declaration. Moreover, former Attorney General John Ashcroft has explained that the Government decided to declare al-Marri an "enemy combatant" only after he became a "hard case" by "reject[ing] numerous offers to improve his lot by . . . providing information." John Ashcroft, Never Again: Securing America and Restoring Justice 168-69 (2006).

This paragraph explains, I think, why it is very unlikely that the government will prevail on appeal in this case--because not only wasn't there any authorized reason for the transfer of al-Marri from criminal to military detention, but, more importantly, because it is manifest that the actual reason for transfer was fundamentally illegitimate, unauthorized by Congress, and already proscribed by the Supreme Court.

Have you seen Orin Kerr's prediction on the Supreme Court reversing??? I think he's way off (though it is clear he is not expressing his personal view of the merits either way).

If Kerr were right, the government would not have ditched Padilla the way it did in the Supreme Court, by intentionally mooting the case. In fact, I wouldn't be surprised if the Government pulls the same thing here if the en banc 4th reverses this.

Here's my reasoning: Four vote exist to affirm rejecting the view that the AUMF authorizes this -- Stevens, Scalia, Souter, and Ginsburg. See Hamdi.

All you need is one more, and I am sure that Breyer would provide it here.

As to the other four -- Thomas sticks to his wacky view in Hamdi that the President can do whatever the hell he wants.

Roberts, Alito and Kennedy probably vote to reverse adopting the plurality's reasoning in Hamdi. Though I wouldn't be shocked to see Kennedy flip with Breyer either.

SCOTUS might buy that theory the "alternative holding", but I'm not sure that the en banc 4th would. The en banc 4ths worldview, I think it is fair to guess, is well to the right of SCOTUS and would find it easy to conveniently ignore the improper purpose evidence of the Rapp Declaration and the timing involved.

Also, Scalia appears to make a big distinction between aliens and citizens that other Justices do not, so it may not be clear sailing for Al-Marri with Scalia. Scalia's argument, IIRC, was that in the case of a U.S. citizen a trial by jury for treason was appropriate, but a non-citizen isn't subject to the same special constitutional treatment of the crime of treason, as he isn't betraying his own country.

The Council of Europe report provides the first-ever glimpse of what took place inside the CIA's secret detention facilities in Poland and Romania. It's not a complete account -- the report attributes its information to "current and former detainees, human rights advocates, or people who have worked in the establishment or operations of CIA secret prisons" -- but it's by far the most complete account available. Here's a selection of what conditions in the so-called "black sites" were like:

Clothes were cut up and torn off; many detainees were then kept naked for several weeks. ... At one point in 2004, eight persons were being kept together at one CIA facility in Europe, but were administered according to a strict regime of isolation. Contact between them through sight or sound was forbidden... and prevented unless it was expressly decided to create limited conditions where they could see or come into contact with one another because it would serve (the CIA's) intelligence-gathering objectives to allow it. ...

The air in many cells emanated from a ventilation hole in the ceiling, which was often controlled to produce extremes of temperature: sometimes so hot that one would gasp for breath, sometimes freezing cold.

Many detainees described air conditioning for deliberate discomfort.

Detainees were exposed at times to over-heating in the cell; at other times drafts of freezing breeze.

Detainees never experienced natural light or natural darkness, although most were blindfolded many times so they could see nothing....

There was a shackling ring in the wall of the cell, about half a metre up off the floor. Detainees' hands and feet were clamped in handcuffs and leg irons. Bodies were regularly forced into contorted shapes and chained to this ring for long, painful periods.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt.

Well, I think Scalia might find that the MCA reaches the conduct in this case - remember, he's not a fan of legislative history. So I think he switches. But I think Breyer and Kennedy, on a clear reading of the Hamdi plurality, both vote to affirm the Fourth Amendment (I think Orin is just way off on this point).

I disagree with Marty's point that this is about interrogation. Certainly, from a practical standpoint, this EFFECTS interrogation, but the motives behind the government's decision are something that I don't think a court can reach, either theoretically or practically. So yes, abusive interrogation caused the judicial conflict, but I don't think it resolved the answer. As Orin Kerr's (otherwise misguided point) on VC illustrates, I don't think you can get different answers if they had to release him for lack of evidence (and from the facts, since he appears not to be actually guilty, I assume that WILL be his ultimate fate - though he'll be "released" to Albania, instead.

JONATHAN HAFETZ: Well, he was arrested at his home by FBI agents, charged with a crime, and then, as you pointed out, shortly before trial and actually literally on the eve of a hearing to suppress illegally seized evidence that was taken from his home without a warrant, the government essentially just pulled the plug on the criminal justice system and by the stroke of a pen transferred him to a military brig to legal limbo, where he had no rights, was held incommunicado and has been detained without charges now for going on four years.

AMY GOODMAN: And what exactly was the charge?

JONATHAN HAFETZ: Well, there was no charge. There were just allegations made, hearsay allegations, allegations we believe that were obtained from detainees through illegal methods, other detainees possibly through torture that the government did not present in court. There has been no hearing, no witnesses, nothing that would resemble what we understand as due process.

AMY GOODMAN: And what does “enemy combatant” mean, that he had been fighting on the battlefield?

JONATHAN HAFETZ: Well, the term “enemy combatant” means essentially whatever the government says it means. They've used different definitions in different cases.

AMY GOODMAN: Invented by this administration?

JONATHAN HAFETZ: Yeah. The concept of enemy combatant is not a concept that's identified under the laws of war. The government claims it's a customary use of the laws of war or, you know, law of armed conflict, but there is no such thing as enemy combatant as the administration’s used its term. The way they use it is they try to describe it as someone who's fighting on a battlefield. But Mr. al-Marri was never on a battlefield, never fought against US troops. He's not in any way what we understand to be a combatant under the laws of war. He is essentially an alleged criminal who should be tried in the criminal justice system and has a right to be tried, but they are inventing this term to try to kind of pull the rug from under those rights and essentially get out of the Bill of Rights.

AMY GOODMAN: So what does this mean for other non-citizens in the United States?

JONATHAN HAFETZ: Well, it’s, I think, very terrifying what it could mean. It means, one, if the government is correct about the Military Commissions Act, any immigrant could be snatched off the streets and secretly jailed, potentially forever, in a military brig, without ever having the right to get the court on a habeas corpus petition to ever have a right to receive judicial review of whether their detention is unlawful. And it means that individuals could be held potentially forever without charge. And it's important to know that the powers the government is asserting to hold Mr. al-Marri as an enemy combatant are the same powers they say they can hold a US citizen. They've made clear that if everything were the same and Mr. al-Marri were a US citizen, they could do exactly the same thing. So what can happen to him could happen to a US citizen. It happened to Jose Padilla, as we know. And, I mean, this is it. They are essentially crossing the rubicon. They are essentially saying, “We don't have to follow the criminal justice system and the Bill of Rights if we deem someone an enemy combatant.”

AMY GOODMAN: Have you met with al-Marri?

JONATHAN HAFETZ: Yes, a number of times.

AMY GOODMAN: What is his mental condition?

JONATHAN HAFETZ: Well, I think it's fluctuated over time. You know, at times it’s been very bad. I mean, there was a period of time when he was held in -- you know, the isolation and the deprivation of basic necessities, basic religious items that didn’t allow him to practice Islam. Things like, you know, that we take for granted, like soap and toilet paper, were not given to him. And there was a period of time where he felt like he was losing his mind. He's now in more stable condition. Things have improved, you know, largely because we filed a lawsuit against the government to compel them to treat him humanely. But he has, I think, been harmed very significantly, physically and mentally, by this ordeal, but, you know, he's trying to hold it together and to main faith that he’ll have, you know, the right to a fair hearing in court one day.

AMY GOODMAN: And what about his family, his wife and his kids?

JONATHAN HAFETZ: Well, it's difficult. His youngest child, for example, he last saw when the child was nine months old; now over five, has not seen them. He’s not allowed to talk to them on the phone. No visits. All he's allowed to communicate through is letters, but because of the government censorship, they take sometimes ten months to reach his family or his family’s letters to reach him. And they’re sometimes very redacted. They will black out, you know, three-quarters of a letter from a seven-year-old child. So it's really inconceivable that he's not allowed to have meaningful contact with his own family.

AMY GOODMAN: And under what circumstances do you see him? What is the physical space like? What condition is he in?

JONATHAN HAFETZ: Well, now where we see him it varies. I mean, we're able to sit across from him. He's now not restrained. He used to have a leg shackle, ankle shackle on. But we're able to meet with him now, and the staff at the brig have been very professional and accommodating in handling these requests. And, you know, the problem is not with the folks at the brig, the military people; the problem is with the administration and the three stars, as it were, who set this kind of policy, where you can hold someone as an enemy combatant and not give him any of the protections that we give prisoners during wartime.

Al-Marri’s case challenges the President’s assertion of unchecked executive detention power over all individuals in the United States. In the administration’s view, the President has the authority to arrest and detain individuals without charge, without due process, and without meaningful judicial review. Congress, however, has not authorized such unchecked executive detention authority and the Constitution squarely prohibits it. - Brennan Center for Justice, NYU

Although al-Marri was arrested inside his home in the middle of the United States, the President claims the power to hold him indefinitely as an “enemy combatant” based upon second- and third-hand allegations that he is an “al Qaeda sleeper agent.” No evidence has been presented to20sustain these allegations, many of which appear to have been gained through torture. Further, the President now asserts that the recently enacted Military Commissions Act of 2006 strips the federal courts of their historic habeas corpus review over his challenge to his detention. If so, any of the millions of immigrants in the United States can be swept off the streets and locked in a military jail without access to the courts. Al-Marri’s case is now before the U.S. Court of Appeals for the Fourth Circuit. Arguments are scheduled for late January 2007. - id.

Ali Saleh Kahlah al-Marri is the only person detained as an “enemy combatant” in the United States. Al-Marri, a citizen of Qatar, has been imprisoned without trial and without due process since he was arrested in Peoria, Illinois, in December 2001. Al-Marri came to the United States with his wife and five children to obtain a masters degree at Bradley University in Peoria, Illinois. After he was arrested, he was charged with credit card fraud and other criminal offenses. Al-Marri asserted his innocence and prepared to contest the charges at trial. But, in June 2003, shortly before his trial was scheduled to commence, and on the eve of a hearing to suppress illegally seized evidence, the President signed a one-page order declaring al-Marri an “enemy combatant” and directing his transfer to a Navy Brig in South Carolina, where he was held incommunicado and interrogated for more than a year. At the Brig, al-Marri was also subjected to torture and other cruel, inhuman, and degrading treatment. He remains in solitary confinement at the Brig under severe restrictions, and has not seen or spoken with his family in nearly five years. - id. ;)

In Hamdi v. Rusmfeld, the Supreme Court held that an individual captured during active combat in Afghanistan had the right to habeas corpus to determine whether his detention remained within “the permissible bounds”of the law.

What are the legal limits of the “enemy combatant” category? The Bush Administration defines this category so broadly that it would include a person who, for example, innocently donated money to a charity that he did not realize was secretly financing terrorist activities. In Hamdi, the Court made clear that the proper scope of the “enemy combatant” definition is subject to independent judicial review.The Supreme Court also ruled in Hamdi that habeas requires sufficient factual evidence to sustain a prisoner’s detention.

The Court explained that detainees must receive notice of the allegations against them and ameaningful opportunity to rebut those allegations before a neutral decision maker. Habeas, the Court made clear, thus helps ensure that errant tourists, embedded journalists, local aid workers, and others captured amidthe chaos of a foreign war zone are not mistakenly swept up and wrongly detained.

Hamdi was an American citizen. But in another decision, Rasul v. Bush, the Supreme Court made clear that habeas extends to foreign nationals held as “enemy combatants.” Noting that “Executive imprisonment has been considered oppressive and lawless” since Magna Carta, the Court affirmed the right of Guantanamo detainees to challenge their indefinite imprisonment through habeas corpus. Emphasizing that the detainees insistedthat they were “wholly innocent of wrongdoing,” the Court made it clear that there was just as good achance that innocent foreigners, as well as American citizens, could be imprisoned by mistake.- Jonathan Hafetz (excerpted from 10 Things You Should Know About Habeus Corpus.